The court held that the absence of prima facie evidence for commercial prostitution and the lack of a notified area for the alleged offences warranted quashing of the FIR against the petitioners.

ORDER

This petition under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 is presented for quashing of FIR at crime No. 45 of 2021 registered at Police Station, Mahila Thana, Indore and subsequent proceeding in RCT No. 3086/2021 pending before the Judicial Magistrate First Class, Indore.

2 The exposition of facts, giving rise to present petition, is as under:-

The Crime Branch Indore received secret information that immoral activity and brothel is running at Atoms Salon, Spa and Skin Clinic at Sagun Arcade Building Rasoma Square, Indore. Accordingly, a raid was planned by Sub Inspector Rashmi Patidar alongwith other police officials. The Constable Sudhir Bhadoriya was sent as a punter (decoy) with four currency note of denomination Rs. 500/- each and instructed to give them signal on verification of secret information. After receiving the signal from constable Sudhir Bhadoriya, a raid was conducted at Atoms Salon. A woman employee Rukaiyya and Manager Sanjay Verma were found at counter of the Salon. The cash amount of Rs. 2000/- deposited by Constable Sudhir Bhadoriya was recovered from the drawer of the counter. On search of the Salon, petitioners were found in compromising position with male clients. Both the petitioners informed that they are involved in prostitution for money. They frequently engage in illegal activities at the spa and get a share of the customer fees. The mobile phones of the petitioners and customers Anil Bhansoli and Sachin Naik were seized. Some packets of condoms were also seized from the spa. The petitioners were arrested on the spot. The P.S. Mahila Thana, Indore registered FIR at crime No. 45/2021 for the offence punishable under Sections 3,4,5 & 6 of the Immoral Traffic (Prevention) Act, 1956. Relevant seizures were made at the instance of Manager Sanjay Verma. The statements of all the accused were recorded under Section 27 of the Evidence Act. On completion of investigation, prosecution for offence punishable under Section 7 of the Immoral Traffic (Prevention) Act, 1956 was added and final report was submitted before the Court of Judicial Magistrate First Class, Indore. The trial is underway.

3 The impugned FIR is assailed in present petition on following grounds:-

A The petitioners have been falsely implicated. The allegation that they were found in compromising position and involved in immoral activity are baseless and not supported by any credible evidence.

B There is no prima facie evidence to support the allegation for offence punishable under Sections 3, 4, 5 & 6 of the Immoral Traffic (Prevention) Act, 1956. There is no evidence collected during investigation to show that petitioners were habitually involved in prostitution or they were part of any organized illegal activity. There is no evidence that the petitioners are conspirators in running the prostitution racket.

C In absence of any evidence suggesting that the petitioners were involved in organizing or promoting illegal activity at the premises, they deserved to be treated as victims of exploitation rather than the offender.

D The raid was conducted in violation of Section 15 of the Immoral Traffic (Prevention) Act, 1956.

E The alleged offences are not made out against the petitioners.

4 On these grounds, it is prayed that impugned FIR dated 23.2.2021 registered at crime No. 45/2021 at the P.S. Mahila Thana be quashed alongwith subsequent proceedings.

5 Learned counsel for the petitioners in addition to the grounds mentioned in the petition contends that there is no material to show that the petitioners were involved in sexual activity for commercial purposes except their own confessional statement recorded under Section 27 of the Evidence Act. Further, there is no evidence that the alleged act of prostitution was carried on within the notified area or in the vicinity of specified public places. Therefore, the offence punishable under section 7 of the Act is not made out against the petitioners.

6 Per-contra, learned counsel for the St